May 20, 2016
Employment litigation can be quite complex, and one of the more challenging aspects of such cases concerns expert witness advice and testimony. This article discusses when employment litigation expert witnesses are called for in employment disputes, what kind of experts are relevant in the field, and other related matters to offer guidance to employment law practitioners.
(1). When are Experts Needed?
One common question involves when an employment litigation expert witness is needed in an employment law case. As one of the nation’s leading employment attorneys explains, “[I]n circumstances beyond…fairly simple scenarios, an expert witness is likely to be needed to present testimony as to a plaintiff’s economic or emotional damages. Also, if the plaintiff has a wrongful discharge in violation of public policy claim, or a whistleblower claim that involves subject matters unfamiliar to a typical juror, such as accounting issues, or financial and securities standards under the Sarbanes-Oxley Act, then an expert witness may be necessary to explain these issues to the jury.” Lynne Bernabei, et al., “Do We Really Need Experts in This Case and When Should We Hire Them?,” ABA Section of Labor & Employment Law: Ninth Annual Labor & Employment Law Conference, Nov. 405, 2015.
In cases alleging emotional distress, it is somewhat unclear as to whether or not expert testimony is required to assess damages. See id, e.g. In one case before the Third Circuit Court of Appeals, lay testimony was considered sufficient to establish emotional distress damages in an employment case. See id., citing Gagliardo v. Connaught Laboratories, Inc., 311 F.3d 565, 573-74 (3d Cir. 2002). On the other hand, the Second Circuit has held that “lay testimony about the plaintiff’s emotional distress, absent any physical manifestations or other corroboration, did not support the jury’s award of compensatory damages in a gender discrimination case.” Id., citing Annis v. County of Westchester, 136 F.3d 239, 249 (2d Cir. 1998). Accordingly, to determine whether expert testimony is necessary in determining emotional distress (or other types of) damages, attorneys must examine the local rules of the jurisdictions in which they practice.
(2). Types of Employment Litigation Expert Witnesses:
According to a leading employment attorney, “there are three types of experts who frequently appear in employment discrimination and retaliation cases: mental health experts; economists; and vocational rehabilitation experts.”* Id.* These types of employment litigation expert witnesses are discussed with more specificity herein.
(A). Mental Health Experts: Determining when a mental health expert is necessary versus when one is impermissible can be somewhat difficult. In any cases where emotional distress is alleged, expert testimony is generally needed if “the plaintiff has emotional distress damages that are quite severe, or reflect symptoms and disorders that are not within the common knowledge of jurors.” Id.
However, there are certain instances in which employment litigation expert witness testimony is typically prohibited. Specifically, “the courts have generally prevented expert witnesses, including mental health professionals, from testifying whether they have an opinion as to whether the plaintiff or any other witness is credible or truthful.” Id. This means that experts cannot testify about whether a litigant actually suffered from a particular type of abuse or distress, for example. See id., citing Clark v. Edison, 881 F. Supp. 2d 192, 217 (D. Mass. 2012). Employment litigation expert witnesses are also not permitted to testify to such matters, for example, as whether or not a party’s testimony on emotional distress matters is credible or consistent. See id., citing Crowley v. Chait, 322 F. Supp. 2d 530, 553-54 (D.N.J. 2004). Finally, an expert cannot give testimony as to whether or not litigants’ allegations of distress are believable or whether a certain type of abuse actually took place. See id., citing Isely v. Capuchin Province, 877 F. Supp. 1055, 1067 (E.D. Mich. 1995).
One additional issue that bears mentioning in the context of mental health experts has to do with instances where a mental health professional plays a dual-role as a treating physician and an employment litigation expert witness for the patient. Many attorneys will utilize a plaintiff’s mental health provider in both roles “as both a fact and expert witness, as a cost-saving device.” Id. Although this rationale is common, it may not be the best option, because “the ethics codes of several health care professions may prevent treating health care providers from serving as an expert witness in litigation involving their patient.” Id. As the American Academy of Psychiatry and the Law explains “Treating psychiatrists appearing as ‘fact’ witnesses should be sensitive to the unnecessary disclosure of private information or the possible misinterpretation of testimony as ‘expert’ opinion. In situations when the dual role is required or unavoidable (such as Workers’ Compensation, disability evaluations, civil commitment, or guardianship hearings), sensitivity to differences between clinical and legal obligations remains important.” See id., citing American Academy of Psychiatry and the Law, “Ethics Guidelines for the Practice of Forensic Psychiatry” (May 2005). Many other organizations (such as the American Psychological Association or “APA”), as well as some state licensing boards caution against or even prohibit a treating mental health practitioner from “testifying as an expert witness with respect to their own patients.” Id.
Ultimately, employment attorneys should pay heed to these warnings and “In light of these ethical proscriptions, which may open the door for cross-examination of the plaintiff’s health care provider by the employer’s counsel,” such attorneys “should be wary of using a treating mental health provider as an expert witness.” Id.
B.) Economics Expert: There are several scenarios in which economics expert witnesses are required for employment law cases. One such scenario is when a litigant seeks damages in the form of “front pay” (or lost future pay/earnings). See id. In such cases, “an expert economist will likely be needed to explain to the jury the methods for calculating lost future pay, particularly the need to reduce future earnings to their present value. If the plaintiff receives an award now for future pay covering a number of years, that award needs to be reduced to reflect the fact that the plaintiff can invest the money and earn interest at the standard interest rate (LIBOR) on amounts that would otherwise not have been received until later years.” Id.
Another instance in which economics expert testimony is called for is when more than one “income stream” is being compared. Such instances arise when, for example, a comparison must be made between “the compensation the plaintiff would have earned had she remained with the defendant (which terminated her) versus the compensation that the plaintiff has earned and will now earn, given her dismissal,” and “the assumptions underlying those calculations will also need to be explained to the jury [by an economics expert].” Id.
Economics expert testimony is not just required for jury deliberations. It may also be needed at the summary judgment stage in employment cases. For example, if a defendant requests a summary judgment, alleging that “the plaintiff has failed to present sufficient evidence to allow her claim for damages to go to the jury”, expert economic testimony is essential. Id.
The general rule, with respect to economics expert witnesses and employment litigation, is that any time a matter of compensation is not something that can be simply calculated using basic equations and a calculator, an expert witness should be retained.
C.) Vocational Rehabilitation Experts: A veteran employment attorney admonishes employment lawyers to be careful with respect to when and whom they hire as a “vocational rehabilitation expert.” She warns that “vocational rehabilitation as such is not a professional field with graduate training and state licensing requirements, in contrast to medicine and psychology. … Lacking professional credentials and a professional field of expertise, some vocational rehabilitation ‘experts’ end up speculating on why the plaintiff has not returned to work, and relying upon inherently unreliable sources.” Id.
Despite these precautions, there are times when vocational rehabilitation experts do play a role in employment lawsuits and are appropriate, credible sources of evidence and testimony. For example, “to address whether the plaintiff is capable of returning to work in any capacity, or whether the plaintiff has made sufficient efforts to search for new employment.” *Id. * Moreover, some courts have permitted the testimony of career or vocational rehabilitation counselors to testify as expert witnesses. *See id. *The Third Circuit upheld a lower court’s decision to admit the testimony of a vocational rehabilitation counselor, on the grounds that the counselor did possess the “minimum qualifications necessary to testify as an expert.” See id., citing Waldorf v. Shuta, 142 F.3d 601, 627 (3d Cir. 1998).
Many courts have grappled with whether or not to treat vocational rehabilitation counselors/therapists as expert witnesses or not. The bottom line for attorneys is to ensure that the witnesses they choose to retain in this field can satisfy the requirements of Daubert (as many vocational rehabilitation witnesses have been rejected by courts on Daubert grounds), to vet their experts carefully, and to ensure that their witnesses’ opinions are based upon reliable and credible evidence and sources.
Determining when and what type of employment litigation expert witnesses to retain can be a challenge. Ultimately, attorneys should carefully evaluate what points they need expert evidence to prove and then carefully screen prospective experts of each type to ensure that the testimony and advice they obtain is the best possible and will help to ensure a successful resolution of a particular case.